Order regu JUDICIAL SALES OF LAND; POWERS OF PROBATE JUDGE; CLERKS OF February, 1878. (16 Stat., 336.) SEC. 2. That on and after the passage of this Act, all sales of real public officers, estate or personal property under the orders of the Probate Court, lating sales by Proviso. shall be made by the Judge of Probate; and all sales under the order of the Court, where the title is to be made by the Clerk of the Circuit Court, such sales shall be made by the Clerk; and all other judicial sales shall be made by the Sheriffs, as now provided by law: Provided, Nothing herein contained shall affect the sales under executions issued out of the Courts of Trial Justices or those to be made by executors or administrators. NOTE.-Masters to make sales where ordered by the Circuit Court in granting equitable relief. (March 23, 1878, 16 Stat., 609.) Post, page TITLE IV. PROBATE COURT. SEC. 35. Sessions. 36. Court of Record. 37. Duties of Clerk. 38. Jurisdiction of Judges. 39. In relation to Guardians. 40. Titles and partition of Real Estate. 41. Settlement of Estate in the County where will proved. 42. All proceedings relative to Estates under Guardianship had in the Court of Probate. 43. Judges not to act when interested. adjoining County to act. 44. Power to administer Oath. When Judges of 45. Probate Court may issue Warrants and Processes. 49. Jurisdiction not to be collaterally impeached. 50. When minor may choose guardian; guardian interested; where appointed. 51. Authorized to permit sale and settle accounts of guar dian. SEC. 52. Judges may appoint times and places for holding Courts. 53. Open at all times for certain business. 54. Adjournment of Court. When by Clerk. 55. Appellate jurisdiction of Circuit Court. 56. Jurisdiction of Supreme Court in Probate matters. 57. Appeal to the Circuit Court to be taken within fifteen 58. Repealed. 59. Grounds of appeal to be filed. 60. Certified copies of record to be filed in Circuit Court. 62. How Circuit Court proceed to the trial. 63. Costs given to prevailing party. 64. Appellant neglecting to enter appeal, judgment affirmed with costs.. 65. Final decision to be certified to Probate Court. 66. Probate Judge not to have voice in determining appeal. 67. All proceedings to be commenced by petition. 68. Supreme Court to make rules. 69. County Commissioners to provide all books, etc. 70. Judge may keep order, and punish contempt. 71. Processes of Court-how executed. 72. Judge may commit lunatics, etc., to Lunatic Asylum. 73. Laws of Provisional Government, how far adopted. Transfer of record. SEC. 35. A Court of Probate is hereby established in each of the Sessions. several Counties in the State, which shall hold a session on the first Monday of each month, at or near the Court House, and continue thereafter so long as the business may require. SEC. 36. The Court of Probate shall be a Court of Record, and have a seal, may appoint a Clerk, and remove him at pleasure; and on failure of the Court to appoint such Clerk, the Judge of the Court may perform all the duties of Clerk. SEC. 37. The Clerk of the Court of Probate shall keep a true and fair record of each order, sentence and decree of the Court, and of all other things proper to be recorded; and on the legal fees being paid, shall give true and attested copies of the files and Court of Re cord. Duties of the Clerk. Jurisdiction of Judges. In relation to Guardians. Titles and partition of real estate. tence of Sec. 40 stitutional in proceedings of the Court. All copies so attested, shall be legal evidence in the Courts of this State. SEC. 38. Every Judge of Probate, in his County, shall have jurisdiction in all matters testamentary, and of administration in business appertaining to minors and the allotment of dower, cases of idiocy and lunacy, and persons non compotes mentis. SEC. 39. The Judge of Probate shall have jurisdiction in relation to the appointment and removal of guardians of minors, insane and idiotic persons, and persons non compotes mentis, and in relation to the duties imposed by law on such guardians, and the management and disposition of the estates of their wards. He shall exercise original jurisdiction in relation to trustees appointed by will in cases prescribed by law. SEC. 40. He may exercise jurisdiction of all petitions for partition of real estate where no dispute exists in relation to the title The first sen- thereof; and when the title to such real estate is disputed, he shall declared uncon- refer the same to the Circuit Court for adjudication, unless the parties shall consent to his determination of the same. The probate of the will, and the granting of administration of the estate of any person deceased, shall belong to the Judge of Probate for the Scott vs. Bry- County in which such person was last an inhabitant; but if such person was not an inhabitant of this State, the same shall belong to the Judge of Probate in any County in which the greater part of his or her estate may be. 10-347. ant. (Mss.) 10-435. Settlement of estate in County where will proved. 15 Stat., 496. SEC. 41. All proceedings in relation to the settlement of the is estate of any person deceased shall be had in the Probate Court of the County in which his will was proved, or administration of estate was granted. And whenever it shall appear to the satisfaction of any Judge of Probate that the personal estate of any person deceased is insufficient for the payment of his debts, and all persons interested in such estate being first summoned before him, and showing no cause to the contrary, such Judge of Probate shall Judge of Pro- have power to order the sale of the real estate of such person debate, how and when he may ceased, or of so much thereof as may be necessary for the payment order sale of real estate in of the debts of such deceased person, upon such terms and in such payment of de debts. ceased person's manner as he may think best; may grant orders of injunction to May grant stay actions or proceedings against the executors or administrators writs of injunction, etc. of such deceased person, and such other orders as may be necessary to secure the marshaling and administering the assets of such deceased person. All proceedings under this Section to be by sum to be by sum mons and complaint, wherein the time for answering, manner of Proceedings service, etc., shall conform as nearly as may be to the form and mons and compractice in the Courts of Common Pleas of this State. plaint. All proceedings relative to SEC. 42. All proceedings in relation to the property or estate of any person under guardianship shall be had in the Court of Pro- estates under bate of the County in which the guardian was appointed. guardianship had in Court of Probate. Judges not to act when inter cases Judges of ty to act. SEC. 43. No Judge of Probate shall act as such in the settlement of any estate wherein he is interested as heir or legatee, executor ested. In such or administrator, or as guardian or trustee of any person; in every adjoining Counsuch case the Judge of Probate of any adjoining County shall have jurisdiction, and it shall be his duty, upon application, to attend at some term of the Court of Probate in which such case may be pending, which shall not interfere with the duties in his own County, and hear and determine such case. SEC. 44. The Judge or Clerk of the Probate Court shall have power to administer all oaths necessary in the transaction of business before the Probate Court, and all oaths required by law to be administered to persons executing trust under the appointment of said Court. Power to ad minister oath. The Probate Court may issue Warrants and Processes. SEC. 45. Probate Courts may issue all warrants and processes, in conformity to the rules of law, which may be necessary to compel the attendance of witnesses, or to carry into effect any order, sentence or decree of such Courts, or the powers granted them by 2-450. law. contumacy 2-450. to SEC. 46. If any person shall refuse or neglect to perform any In cases of order, sentence or decree of a Probate Court, such Court may issue commit to jail. a warrant, directed to any Sheriff or Constable in the State, requiring him to apprehend and imprison such person in the common jail of the County; and if there be no jail of the County, then in the jail of the adjoining County, until he shall perform such order, sentence or decree, or be delivered by due course of law. SEC. 47. When a witness whose testimony is necessary to be used When depositions may be before any Probate Court shall reside out of this State, (or more taken and used. than thirty miles from the place of holding Court,) or by reason of age or bodily infirmity shall be unable to attend in person, the Court may issue a commission to one or more competent persons to take the testmony of such witness; and depositions taken according to the provisions of the law for taking depositions to be used on the trial of civil causes may be used on the trial of any question before the Probate Court where such testimony may be proper. risdiction after Exclusive ju- SEC. 48. When any Probate Court shall have first taken cognionce acquired. zance of the settlement of the estate of a deceased person, such Court shall have jurisdiction of the disposition and settlement of all the estate of such deceased person to the exclusion of all other Probate Courts. 10-435. Jurisdiction not to be collat ed. SEC. 49. The jurisdiction assumed by any Probate Court in any erally impeach- case, so far as it depends on the place of residence or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the Probate Court in the original case, or when the want of jurisdiction appears on the record. 10-435. Guardian interested-where to appoint. SEC. 50. When, by law, a guardian is required to be appointed When a minor of a minor, who is interested as heir or legatee, or representative may choose guardian. of such heir or legatee, in any estate which is in a course of settlement, such guardian shall be appointed by the Probate Court before which such estate is in course of settlement; but afterwards, if the minor shall reside in another County, and is of the age of fourteen years, he may choose and have a guardian appointed in the County where he shall reside; and in that case, the powers of the first guardian shall cease. In all other cases, guardians shall be appointed by the Probate Court of the County where the persons for whom the guardian shall be appointed shall reside. Authorized to permi: sale and SEC. 51. The Probate Court, by which a guardian shall be to settle ac- appointed, shall have jurisdiction of the estate of the ward, and shall be alone authorized to permit the sale of such estate, and settle such guardian's accounts. counts of guardian. appoint times Judges may SEC. 52. Except as provided in the 35th Section, the Probate and places for Court in each County shall appoint such times and places for holding Probate Courts. holding Courts as shall be judged most convenient for all persons interested, and shall give notice of such times and places in one or more newspapers circulating in the County. 15 Stat., 496. Open at all times for cer SEC. 53. The Probate Court shall be deemed open at all times tain business. for the transaction of ordinary business which may be necessary, when previous notice is not required to be given to the persons interested. ment of Court Of adjourn- SEC. 54. A Probate Court may be adjourned as occasion may when by the require; and when the Judge is absent at the time for holding a Court the Clerk may adjourn it. Clerk. jurisdiction of Appellate SEC. 55. The Circuit Court shall have appellate jurisdiction Circuit Court. of all matters originally within the jurisdiction of the Probate Court. |